ANC vs IEC: ‘Drastic, far-reaching’: ConCourt questions exclusion of 181 ANC candidates

With just three weeks left before the local government elections, the Constitutional Court is deciding whether the ANC’s failure to click a final button on the Electoral Commission’s online system will keep 181 of its candidates off the ballot.

The candidates, from six municipalities, were excluded even though their information and documents had been uploaded on to the Electoral Commission of South Africa’s (IEC’s) system before the deadline.

The ANC’s problem, however, is that it did not complete the last step of clicking “submit as final”, which is essentially at the heart of the case. 

The party says that requirement is not contained in electoral legislation or regulations and should therefore not be used to exclude its candidates. The IEC and the DA, however, argued that clicking the button was an important final step because it confirmed that a party wanted those candidates to contest the election.

The affected municipalities are Port St Johns, Ingquza Hill, Walter Sisulu and Sundays River Valley in the Eastern Cape, as well as uMshwathi in KwaZulu-Natal and Mangaung in the Free State.

Justice Katherine Savage questioned how the ANC had managed to submit its lists correctly across the country but failed to do so in the affected municipalities, describing the situation as “quite extraordinary”. She said there appeared to be little explanation other than that the party had been “grossly negligent”.

Advocate Daniel Burger, representing the ANC, said, however, that the party had contacted the IEC help desk during the final half-hour before the deadline because it was experiencing difficulty with the final-submit button.

“If truth be told, if it could have pressed the button, it would have pressed the button,” Burger said.

What happens to the voters?

Meanwhile, Justice Rammaka Mathopo raised concerns about whether failing to click the button should have such serious consequences, particularly for voters who had chosen candidates to represent them.

“It looks to me that it is something very drastic, far-reaching, that impacts upon the rights of the voters. If I am a voter and I needed to know what would happen if my candidate or if my party did not click the button…” Mathopo said.

He asked the court to imagine a community that had sat together, chosen the candidate it wanted and given that person a mandate to represent it. The candidate could then report back that the documents had been sent electronically and uploaded on to the IEC system, only for the community to later learn that the nomination had been rejected because a final button was not clicked.

“My anxiety lies in the fact that you would then come back and say, in terms of the IEC manual, [that] the IEC says our nomination for the party and ward list cannot be considered as compliant because there was a button that we ought to have clicked and we did not click the button,” Mathopo said.

He said voters could then reasonably ask whether the requirement to click the button was actually contained in the law.

“The electorate would ask, is that provided in any law? If it’s not provided in any law, then you’d go back and say no, it’s not in the Act, neither is it in the regulation, and say it’s in the manual. The question that would follow would be, what is the legal status of the manual?”

IEC: ANC knew the requirement

But advocate Terry Motau SC, representing the IEC, said Mathopo’s concern had to be considered against the facts of the ANC’s case. He argued that the party had used the IEC’s candidate nomination system for about a decade and had previously complied with the “submit as final” requirement without difficulty.

“If the question arises in the abstract, perhaps it could pose a difficulty, but here it arises within a specific set of facts,” Motau said.

He said this was not a case where candidates had been caught out by a hidden or unknown requirement, pointing out that the IEC had explained how the system worked through its user manual and other documents.

“We are not sitting with a case where candidates say there is a requirement that was unknown, which is hidden somewhere in the documents,” Motau said, arguing that the ANC had known about the requirement and had complied with it in previous elections,” Motau said.

DA warns of ‘absolute chaos’

Advocate Michael Bishop SC, representing the DA, also opposed the ANC’s case, warning that accepting the party’s argument could create problems far beyond the 181 candidates before the court.

Bishop told the court that the final-submit button was only one of several requirements built into the electronic system. Parties also had to use the correct documents and file formats when submitting their candidate lists.

“There’s no line between disqualifying requirements of the system and non-disqualifying requirements of the system,” Bishop said.

He warned that if the court found that the IEC could not enforce a requirement unless it was specifically contained in legislation or regulations, other parties that had failed to meet different requirements could make the same argument.

“It will create absolute chaos if the court finds that, because it’s not just about those 2,274 candidates who uploaded but did not push submit as final,” Bishop said.

“What about all the other parties and candidates who we don’t know about, who tried to use the system as designed, failed, didn’t get their list in on time?”

Bishop said more than 2,000 candidates from other political parties were in the same position because their information had been uploaded, but not submitted as final.

Uploading is not submitting

The IEC argued there was an important difference between uploading a candidate list and submitting it. Parties could upload their information before the deadline and continue making changes to their candidate lists. The final button was then used to tell the IEC that the list was complete and ready to be submitted.

The DA agreed, saying, without that step, the IEC would not know whether a list was still being worked on or whether the party actually wanted those candidates on the ballot.

“Providing the information is not enough, if you do not declare your intention to contest,” Bishop said.

The IEC also argued that political parties knew what would happen if they did not complete the process before the deadline and had been warned that lists which were uploaded, but not submitted as final, would be removed from the system.

‘You have to push that button’

Bishop used his own recent experience of making an online restaurant reservation to explain the IEC’s argument. He told the court that it was his anniversary and he had made a restaurant booking online that morning. Even after entering all the required information, he still had to click another button to confirm the reservation.

“If I didn’t push confirm, I wouldn’t have a reservation. And my wife would be very upset with me. You have to push that button. That’s the way how electronic forms work. This is not something weird or unusual the commission has designed,” Bishop argued.

Judgment reserved 

Deputy Chief Justice Dunstan Mlambo said the court would endeavour to deliver its judgment soon. “We will reserve our ruling, but we understand the urgency implicit in the whole matter. We undertake not to delay our decision.” DM